As for the lack of messages in this case, they always say the coverup is worse than the crime, but if you don't know what the crime is, how can you be so sure?
As for the lack of messages in this case, they always say the coverup is worse than the crime, but if you don't know what the crime is, how can you be so sure?
> From the perspective of the banks, I have argued, this is a novel expansion of the SEC’s authority. When the SEC created its rules on recordkeeping, it required banks to retain copies of their “inter-office memoranda,” but it was 1948 and those memoranda were produced with carbon paper; they were formal business records memorializing serious policies. In the 2020s, WhatsApp chats are, in large part, substitutes not for formal memoranda but for talking to someone in person. When I was a banker, I have written, “There were some mornings when I sent more than 100 inter-office memoranda, though like 20 of them would be ‘lol’ or ‘fml.’” In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.
It's the price of being publicly traded, which is born out of our lessons learned from the Enron scandal, and gave us incredibly simple SOX regulations, and decades of strange antipathy towards them.
> it just seems like punishment for the literate.
Are you suggesting that companies are eschewing written communication for verbal communication as a means of bypassing this legislation? And that it's unfair you have no similar bypass? That's a pretty morally relative take.
> but if you don't know what the crime is, how can you be so sure?
You've precisely described _why_ the coverup is seen as worse than the crime.
Publicly traded or not, companies aren't expected to record all voice conversations done by their employees and retain those recordings for future court cases.
That's the double-standard that OP is pointing out. There seems to be an expectation that text chat should be recorded and persisted and audio not.
This is a vestige of an old era when text was for more "formal" or serious conversation and chat for informal.
Today with IM-ing and remote work text can be as ephemeral as voice.
As the saying goes: “Get it in writing”
It's okay for text intended to be permanent to be held to the standard of permanent text.
But creating an expectation that text that is fundamentally intended to be ephemeral should be treated as permanent text does not sound reasonable.
The "crime" is not the chatting. It's using the wires to do it. The danger is the utilization of network infrastructure to facilitate criminal activity.
Or at least that seems to be my view of things.
Americans with Disabilities Act says "Hi". Lock someone out of a position solely on the basis of avoiding a reasonable accommodation for the sake of avoiding creation of a business record to do skulduggerous things, and you've just handed someone a sizable cause of action against you.
Seriously, just stop trying to do illegal shit and get away with it and accept that sometimes the way through actually includes changing the rules first, or that any business model that requires you to do something illegal that can only be mitigate by getting away with it long enough to create an issue after scaling should probably be DOA for a reason you haven't bothered to read up on yet.
I know... I know... Read the room. Totally not HN's bag. Get a load of this square, so on, and so forth. I've done my stint in startups. I've seen the harms they can cause. I've been on the receiving end of the industry's lack of care long enough to realize that these regulations exist for a reason. Part of it is to create generous hooks whereby the legal system can actually introspect what you're up to while you're enjoying the benefits of government granted legal fictions.
A good enterprise doesn't need crime. Simple as.
Let’s consider another hypothetical: if a deaf employee uses teletext to communicate, are they held to a different standard legally than a non-deaf employee? Or do you mean they should learn sign language to enjoy full privacy rights that everyone else has?
Essentially removing the question of whether someone should have considered something as potential evidence before destroying it.
_Not creating more incriminatory evidence_ is not illegal.
Creating unnecessary and incriminating records comes down to your own incompetence.
Historically, my pain with SOX has primarily been related to:
1. Poorly written control procedures that hamstring process but nobody wants to fix them, since typically the biggest point is your process is reasonable, documented, and followed... changing it can be fine.
2. Having to fill out time sheets for my work and having to use a flowchart to know what to put in the Capex/Opex column for my time on a given task, so accounting can follow reporting practices.
No, its not.
Litigation holds apply to everyone, it is not just publicly-traded firms that get in trouble if they destroy evidence related to current or reasonably expected litigation (including, but not limited to, an enforcement agency investigation in which they have been notified to retain information for that purpose.)
Not sure of the origin, possibly Martin Lomasney.
https://en.wikipedia.org/wiki/Martin_Lomasney
https://thewestendmuseum.org/news/the-life-legend-and-lesson...
It's very difficult to search for definite information about this, but the requirements may have the effect of forcing the recording of every conversation just in case it happens to touch on trading activities or another recording-required topic.
Being sued does not imply wrong doing.
No salary is worth the risk of going to jail. It's just another job.
> No salary is worth the risk of going to jail. It's just another job.
If you aren't willing to go to jail for your job, you probably should not be willing to commit crimes just because you have a manager dumb enough to provide documentation implicating both of you in the crime.
If they have a strong aversion to putting it down in writing, then that's a red flag you shouldn't do it.
> of using the ephemeral messaging app for months after the feds notified Amazon of the antitrust investigation
I think switching to ephemeral messaging apps specifically in response to antitrust investigation is evidence of mens rea that you’re in an illicit conspiracy. As for the crime:
> The FTC accused Amazon of creating a secret “Project Nessie” pricing algorithm that may have generated more than $1 billion in extra profits.)
You can distrust the government or not believe their argument, but our criminal justice system does depend on the government being able to perform an investigation.
I’m not really sure what you’re talking about in terms of verifying your identity, but verification is 100% part of the “trust but verify” philosophy. You should be able to trust your government while simultaneously being able to verify they’re behaving above board. Also you have to be very careful to distinguish government vs individual, government vs small business, and government vs massive multinational. This is the last bucket and concerns in the former don’t really apply to this last bucket.
None of this of course is relevant here - the government is saying that after they begin legal proceedings with Amazon, when Amazon would be under explicit orders to preserve documents and evidence, Amazon spoiled evidence. That’s a very serious accusation and lawyers don’t typically make such claims if they’re baseless because judges typically frown on claims that turn out to be baseless. If the government wins this argument in court, my understanding is that then there’s a presumption that all the documents were negative in Amazon’s favor.
This theory assumes that the company believes the justice system is infallible.
Suppose you're engaged in an illicit conspiracy and you find out there is an investigation. You'd want to stop writing things down that could prove your crimes, because you're guilty.
Suppose you're not engaged in an illicit conspiracy and you find out there is an investigation. You'd want to stop writing things down that could be taken out of context in a malicious prosecution, because you're being investigated even though you're innocent, perhaps because of lobbying by your competitors who have it in for you, maybe because the prosecutor wants to run for office, but certainly for no good reason and therefore evidently for a bad reason.
Since the expected behavior is the same in both cases, it provides no evidence of which case it is.
Which has a negative impact on not just the case but the economy in general, because some of the information would have been useful to the company's business, but the managers will do what their lawyers tell them to do in order to not get prosecuted.
I think all corporate communications should be preserved indefinitely.
Deletion or using apps like signal to avoid retention should be used against the corporation in court.
You could see it in a different way, such as being a requirement that only catches the dumbest of criminals, repeatedly.